SEPARATION AGREEMENT AND GENERAL RELEASE
This Separation Agreement and General Release ("Release") is between Xxxxx
X. Xxxxxx ("Executive") and Astralis Ltd. ("Employer"), dated as of the 25th day
of January 2006.
WHEREAS Executive has been employed by Employer pursuant to the terms of
an Employment Agreement dated Jaunary 27, 2005, a copy of which is attached
hereto as Exhibit A;
WHEREAS the parties desire to enter into this Release to effectuate the
termination of Executive's employment with Employer;
NOW, THEREFORE, in consideration of the mutual promises set forth below,
the parties agree as follows:
1. Termination of Employment. Executive's employment with Employer shall
end effective December 31, 2005 (the "Separation Date"). Executive agrees not to
seek reemployment with Employer after the Separation Date. Executive further
agrees that the Employment Agreement shall terminate after the expiration of the
revocation period of this Release, and Executive shall be released from the
restrictive covenant set forth in paragraph 11 of the Employment Agreement as of
the Separation Date.
2. Resignation From All Positions. Executive hereby resigns, as of the
Separation Date, from all positions in Employer held by Executive, including,
without limitation, any position as an officer, member of the Board of
Directors, member, manager, agent, trustee, or consultant of Employer, and
agrees to execute and deliver any documents and instruments or to take such
further actions as Employer may reasonably request to effect and confirm such
resignations.
3. Executive Compensation and Benefits.
(a) Executive acknowledges that he has received all wages, vacation
pay, benefits and all other payments to which he was entitled by virtue of his
employment with Employer through the date he signs this Release.
(b) Provided that Executive has not revoked this Release pursuant to
paragraph 17 below and has complied with all terms and conditions of this
Release, Employer shall pay Executive severance in the amount of $50,000 (less
applicable withholdings and deductions) (the "Separation Payment"). The
Separation Payment shall be paid out to Executive in a lump sum on Employer's
first pay date that is at least ten (10) days after Employer's receipt of an
executed Release from Executive. Executive expressly agrees and acknowledges
that the Separation Payment is not otherwise due or owing to Executive under any
agreement with Employer or any policy of Employer.
(c) Provided that Executive has not revoked this Release pursuant to
paragraph 17 below and has complied with all terms and conditions of this
Release, Employer shall grant Executive an option to purchase 182,000 shares of
Employer's common stock on January 27, 2006 at the market price on that date,
and an option to purchase an additional 182,000 shares on January 27, 2007 at
the market price on that date. All options granted to Executive under this
paragraph shall vest as of the grant date and must be exercised within five (5)
years of the grant date. Executive expressly agrees and acknowledges that these
options are not otherwise due or owing to Executive under any agreement with
Employer or any policy of Employer.
(d) Provided that Executive has not revoked this Release pursuant to
paragraph 17 below and has complied with all terms and conditions of this
Release, Employer will pay for Executive's COBRA premiums for a period of six
(6) months after the Separation Date or until the date Executive becomes
eligible for employer-provided benefits from another employer, whichever occurs
first. Executive expressly agrees and acknowledges that payments for his COBRA
premiums are not otherwise due or owing to Executive under any agreement with
Employer or any policy of Employer.
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(e) Executive expressly agrees and acknowledges that the parties
have had a dispute as to whether all or any part of the payments provided for in
subparagraphs 3(b) through 3(d) are otherwise due or owing to Executive under
any agreement with Employer or any policy of Employer and that Employer's
agreement in this Release to make these payments is a compromise of a disputed
claim.
(f) Executive agrees that other than as expressly stated in this
Paragraph 3, he will not seek any further compensation, consideration, benefits,
or any item of value whatsoever from Employer or the Released Parties (as
defined below). Executive further agrees that except as expressly set forth in
this Release, Executive is not entitled to any benefits, wages, bonuses,
commissions, compensation, severance, stock, unvested stock options, or other
payments.
4. Executive's Release And Waiver of Claims.
(a) "Released Parties" means Employer and its parents, subsidiaries,
affiliates, divisions, partners, or predecessors, current and former
stockholders, directors, officers, employees, consultants, and agents of
Employer and these companies, and any and all employee pension or welfare
benefit plans of Employer and these companies, including current and former
trustees and administrators of these plans.
(b) Executive hereby releases the Released Parties from all claims
and rights that Executive has against any and all Released Parties, including,
but not limited to, those claims of which Executive is not aware, those not
mentioned in this Release, and all claims for attorney's fees, costs, and
interest. Executive releases the Released Parties from all claims and rights
resulting from anything that has happened up to now. This Release does not apply
to claims arising under, or after the date of, this Release.
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(c) Executive specifically releases all claims and rights arising
from or relating to Executive's employment, termination of employment or other
relationship with the Released Parties, including but not limited to any claims
or rights Executive may have under Title VII of the Civil Rights Act of 1964, as
amended, and the Civil Rights Act of 1991, the Age Discrimination in Employment
Act, the Americans with Disabilities Act, the federal or any similar state
Worker Adjustment and Retraining Notification Act, the federal Family and
Medical Leave Act, Section 1981 of the Civil Rights Act of 1866, the Fair Labor
Standards Act, the Employee Retirement Income Security Act, the New Jersey Law
Against Discrimination, the New Jersey Conscientious Employee Protection Act,
the New Jersey Family Leave Act, the New Jersey Wage Payment Law, the New Jersey
Wage and Hour Law, and any federal, state, or local laws against discrimination
or protecting whistleblowers, or any other federal, state, or local law or
common law relating to employment, wages, hours, or any other terms and
conditions of employment.
(d) Nothing in this Release shall preclude Executive from filing a
charge under the Age Discrimination in Employment Act with the EEOC or
participating in an investigation, hearing or proceeding conducted by the EEOC
regarding a charge under that statute, but the intent of this Release is to
waive and release Executive's right to recover damages through any such charge,
investigation, hearing or proceeding.
5. Indemnification. Employer's obligations regarding indemnification
pursuant to the provisions of Paragraph 15 of the annexed Employment Agreement
shall continue indefinitely with respect to any action or proceeding relating to
the time during which Executive was employed by the Employer.
6. Non-Disparagement. Executive and Employer agree that they shall not
issue any communication or make any statement, written or otherwise, that
disparages, criticizes or otherwise reflects adversely on or encourages any
adverse action against the other or the Released Parties. Consistent with its
normal practice, Employer will respond to employment inquiries concerning
Executive only by confirming dates of employment, position, and salary.
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7. Confidentiality and Return of Property. (a) Executive acknowledges that
he has had access to information of a confidential nature relating to the
business of Employer, including, without limitation, trade secrets, business
plans, client lists or information, information regarding product development,
production methods and processes, product specifications, marketing plans,
management organization, operating commercial, business or technical
information, and as defined in the Proprietary Information Agreement
(collectively "Confidential Information"), the disclosure of which to a
competitor or others would be likely to cause significant and irreparable harm
to Employer's business. Executive agrees that such information must be protected
as confidential, and not copied, disclosed or used other than for the benefit of
Employer at any time, unless and until such knowledge or information is in the
public domain through no wrongful act by Executive or any other person.
Executive further agrees not to divulge to anyone (other than Employer or any
persons employed or designated by Employer), publish or make use of any such
Confidential Information without the prior written consent of Employer or in
response to a subpoena from an appropriate government agency or court. In the
event that Executive receives a subpoena or other court process which relates to
Employer and Executive reasonably concludes that the subpoena or other court
process may result in the disclosure of Confidential Information, then Executive
shall provide advance written notice of such compelled disclosure to Employer
within sufficient time for Employer to object to disclosure. Such notice shall
be in the form of a letter, which will include a copy of the subpoena or other
court process and this Release, sent via certified mail to: Xxxxxxx X. Xxxxxx,
Esq., XxXxxxxx & English, LLP, Four Gateway Center, 000 Xxxxxxxx Xxxxxx, Xxxxxx,
Xxx Xxxxxx 00000; (b) Executive further agrees that at the Separation Date he
has returned to Employer all of its property and documents (and any copies
thereof) including, without limitation, all Confidential Information, all
computer software and disks, all reports, memoranda, notes, records,
projections, lists, Employer or client financial information, keys, credit
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cards, and equipment, except that Employer agrees that Executive may keep the
notebook computer provided to him by Employer. To the extent Executive is unable
to comply with his obligations under this paragraph before the Separation Date,
Employer agrees to permit him access to its premises on one occasion in January
2006 for no more than 3 hours to complete the return of any Confidential
Information in his possession to Employer. Executive further agrees to make
himself available to Employer from time to time for information purposes
relating to Executive's former position as Employer's Chief Executive Officer.
8. Relief. Executive agrees that a breach of any of the provisions of
paragraphs 6 or 7 of this Release may result in material and irreparable injury
to Employer for which there is no adequate remedy at law and that it may not be
possible to measure damages for such injuries precisely. In the event of a
breach, Employer shall be entitled to obtain a temporary restraining order
and/or a preliminary or permanent injunction restraining Executive from further
violations of paragraphs 6 and 7 hereof. The remedies in this paragraph are in
addition to those otherwise available to Employer.
9. Binding Effect. This Release is binding upon and shall inure to the
benefit of anyone who succeeds to the rights, interests or responsibilities of
the parties. Executive makes the releases contained in this Release for the
benefit of the Released Parties and all who succeed to their rights, interests,
or responsibilities.
10. Enforceability. If a court rules that any provision of this Release is
not enforceable in the manner set forth in this Release, that provision should
be enforceable to the maximum extent possible under applicable law and should be
reformed accordingly. If a court rules that any provision of this Release is
invalid or unenforceable, that ruling shall not affect the validity or
enforceability of the other portions of this Release, which shall continue in
full force and effect.
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11. Entire Agreement. This Release is the entire agreement between
Executive and Employer. It supersedes any existing oral or written agreements
with respect to Executive's employment or termination of employment with
Employer. No representations regarding the Released Parties' relationship with
Executive, or any obligations to Executive, have been made, or survive, except
as set forth in this Release.
12. Amendment. This Release cannot be amended, except by a written
document signed by the party against whom enforcement of any such amendment is
sought.
13. Legal Counsel. Employer hereby advises Executive to consult with an
attorney before signing this Release.
14. Confidentiality. The parties agree that the existence of and the terms
and conditions of this Release shall forever remain confidential as between the
parties and that they shall not disclose them to any other person. Without
limiting the generality of the foregoing, Executive specifically agrees that he
shall not disclose information regarding this Release to any current, former or
future employee of Employer, except to the extent required by federal or state
law or regulations.
15. Full Understanding. Executive has read this Release carefully, fully
understands the meaning of its terms, and is signing this Release knowingly and
voluntarily.
16. Governing Law. This Release shall be interpreted in accordance with
the laws of the State of New Jersey, without regard to its principles of
conflicts of law.
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17. Period for Consideration. Executive shall have twenty-one (21) days to
consider this Release. Executive may elect, at his option, to sign this Release
in a shorter period of time. Executive may revoke this Release within seven (7)
days of signing it. Any revocation must be made by delivering written notice of
revocation to Xxxxxxx X. Xxxxxx, Esq., XxXxxxxx & English, LLP, Four Gateway
Center, 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxxx 00000. To be effective, any
revocation of this Release must be in writing and received by Employer no later
than the close of business on the 7th day after Executive signs this Release.
This Release shall not become effective or enforceable until the expiration of 7
days after Executive signs this Release. If Executive revokes his acceptance of
this Release, Employer shall not be required to provide any of the consideration
described herein.
IN WITNESS WHEREOF, the parties hereto have caused this Release to be
executed as of the day and year above written.
/s/ Xxxxxxx Xxxxxx /s/ Xxxxx X. Xxxxxx
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WITNESS XXXXX X. XXXXXX
Dated: January 25, 2006
ASTRALIS LTD.
/s/ Xxx Xxxxxxx
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Dated: January 25, 2006
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